P.K. Musahary, J.

1. Heard Mr. N.M. Hazarika, learned Counsel for the appellant and also heard Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam.

2. The prosecution case, in brief, is that on 5.1.2006 at about 7.00 a.m. while the injured Amreswar Bora was clearing his land with a khur and his son Arupjyoti Bora was ploughing nearby his father the accused persons came out from bushes and started to blow by a 'mechi dao' and as a result caused serious injuries like fracture of bone in his hand and leg and cut injury over the back side of head. Witnessing the occurrence Arupjyoti Bora rushed to his father and he was also chased by the accused persons for which he had to run to his uncle Mohan Bora who was ploughing in the same field. Mohan Bora also heard screaming and cries of Arupjyoti Bora. Amp approached Mohan and told him that his father was assaulted by the sons of Jamal. Mohan Bora rushed to the place of occurrence and saw Kon Bhaiti still dealing blows to Amreswar Bora. Be that as it may, accused Hiranya Baruah and Kon Bhaiti left the victim. Thereafter the victim was carried to cross the river and boarded in a boat. At the time of crossing the river Bhaben Chutia met them and they arrived in Nakapahua ghat. From the ghat Amreaswar was carried to home and to Dhakuakhana Civil Hospital.

3. The wife of the victim lodged the FIR with Dhakuakhana Police Station which was registered under Section 326/325/34, IPC. The police after completion of investigation submitted the charge sheet under the aforesaid sections. The learned trial court framed charges under Section325/326/34, IPC against the accused persons including the present revision petitioner. The accused persons denied the charges framed and claimed to stand trial. The prosecution examined eight witnesses including the medical officer and investigating officer. The defence side examined none.

4. The learned trial court after conclusion of the trial vide judgment and order dated 27.3.2007 passed in G.R. Case No. 1/2006 convicted Sri Hiranya Kumar Barua and Kon Bhaiti Barua alias Dipumoni Barua under Section 325/324/34, IPC and sentenced them with rigorous imprisonment for three years and fine of Rs. 2,000, in default, with R.I. for two months under Section 325, IPC and sentenced with R.I. for one year and fine of Rs. 1,000 in default, with R.I. for one month under Section 324, IPC. The period of imprisonment was directed to run concurrently.

5. Being aggrieved and dissatisfied with the aforesaid judgment dated 27.3.2007 the accused persons including the present petitioner preferred an appeal before the learned Sessions Judge, Lakhimpur which was registered as Criminal Appeal No. 6(2) 2007. By judgment dated 29.5.2008 passed in the aforesaid Criminal appeal the learned Sessions Judge acquitted the accused Sri Hiranya Baruah and upheld the conviction and sentence of the present accused-petitioner Sri Dipumoni Baruah alias Kon Bhaiti as was ordered by the learned trial court.

6. Mr. Hazarika, learned Counsel for the petitioner, submits that since the main accused person Sri Hiranya Baruah has been acquitted the present petitioner is also entitled to acquittal inasmuch as he has already surrendered and is serving the sentence. Be that as it may, he has served a period of 18 months of the total sentence of 3 years. He further submits that the petitioner was aged about 26 years at the time of alleged occurrence and he has no criminal record. The case of the petitioner may be considered for release on probation invoking the power under Section 360, Cr.PC.

7. I have carefully gone through the entire record produced before this Court and also the evidence on record. The Medical Officer, namely, Dr. B. Gogoi was examined as PW6. In his opinion the victim received the following injuries.

Name of the injured: Sri Amreswar Borah, age 40, sex M, Roll 99.

Address: S/o Lt. Leluwa Bora, Dulia Gaon, Dhakuakhana.

Date of Exam: 5.1.2006, Time of Exam 9 a.m.

Place of Exam: Dhakuakhana